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Delivered in the Constitutional Convention of Maryland, 
At Annapolis, June 14 , ISO4, 



From the Debates of trie Constitutional 

S DP E E C 

ISAAC D. JONES, 


Mr. JONES, (of Somerset.) The brief article which is under consideration 
by this Convention, I desire to read, with a view of recalling the attention of the 
Convention to the question which is really before us, because it is to that only 
that I propose to address my remarks. The article reads thus: 

Art. 4. The Constitution of the United States and the laws made in pursu¬ 
ance thereof being the supreme law of the land, every citizen of this State owes 
paramount allegiance to the Constitution and Government of the United States, 
and is not bound by any law or ordinance of this State in contravention or sub¬ 
version thereof. 

If I mistake not, the real question which is before the Convention is on the 
motion to strike out “ paramount ” before “allegiance,” in the fourth line. The 
article commences with a quotation, as I suppose it was meant to be, of a clause 
in the Constitution of the United States, which clause is in these words: 

“This Constitution and the laws of the United States which shall be made in 
pursuance thereof, and all treaties made or which shall be made under the 
authority of the United States, shall be the supreme law of the land; and the 
judges in every State shall be bound thereby, anything in the Constitution or laws 
of any State to the contrary notwithstanding.” 

I not only subscribe to everything stated in that article, that “the judges in 
every State shall be bound thereby,” but I subscribe to an extension of that lan¬ 
guage, and say that every citizen of every State of this Union shall be bound 
thereby. I have no objection to incorporating such a declaration, if it shall be the 
pleasure of the Convention, in our Bill of Rights, although I do not think this is 
the place for it, and although I find no precedent of its incorporation in any Bill 
of Rights or Constitution of any State. I recognize the truth of that declaration in 
its full effect, in its full obligation upon the conscience and the good faith of every 
citizen of the land. 

But the learned Committee that reported it will permit me to take exception to 
the logic which attemps to draw from that clause the doctrine which is here in¬ 
corporated, that every citizen of this State owes paramount allegiance to the Con¬ 
stitution and Government of the United States. 

My objection to that article in the first place is, that nowhere have I found the 
doctrine taught that allegiance is due to the Constitution or the law, or the Gov¬ 
ernment, if it is taken in its technical sense. If it is to be enlarged to its meaning 
in European governments, it is not to the law, or to the Constitution or Govern- 




ment, but to the Sovereign, that the tie of allegiance binds the obedience of the 
subject. If it is to be taken in the sense of obedience, for that I apprehend is prin¬ 
cipally the sense in which it is used in our State Constitutions, and in ordinary 
language here, then I say that paramount allegiance is not due to the Constitution 
or to the laws, but to the people. Paramount obedience is due to the makers ol 
the Constitutions and the laws. Therefore it. is that Constitutions and laws pass 
away and are changed. It is to the authority over Constitutions and laws, to the 
people, that paramount obedience is due, if it be due anywhere. Therefore it is 
that l object to the phrase which is attempted to be incorporated here, that su¬ 
preme allegiance is due either to the Constitution or to the Government; for it is 
the paramount authority of the people over Constitutions and over Governments, 
which claims the obedience of every'citizen. 

I have taken occasion to look into this question, and see if any precedent has 
been set in any instance in the Bill of Rights of any State from 1776 down to the 
..present time. My worthy friend from Anne Arundel, (Mr. Miller,) alluded to 
the same thing, and said that in most of the States the oath was to support the 
Constitution of the United States. 1 have made a tabular view, showing the 
oaths prescribed in the several State Constitutions. 

OATHS. 

No oath of office is prescribed by the Constitutions of Pennsylvania, Virginia, 
North Carolina, Ohio, Missouri, Arkansas, Wisconsin—7 States. 

The oath prescribed in the Constitutions of the following States is “to support 
the Constitution of the United States and of the State,” viz: Maine, Connecticut, 
New York, New Jersey, Tennessee, Indianna, Louisianna, Mississippi, Alabama, 
Michigan, Iowa, California, Minnesota, Oregon, and Kansas—15 States. 

The oath prescribed in the Constitutions of the following States is “ to preserve, 
protect and defend the Constitution of this State and of the United States,” 
viz: South Carolina, Illinois and Florida—3 States. 

The Constitutions of Vermont, Rhode Island and Kentucky prescribe an oath 
“to be true and faithful” to the State—and Rhode Island and Kentucky adds: 
and to support * Constitution of the United States—3 States. 

In Texas the oath is “ to discharge the duties of the office agreeably to the Con¬ 
stitution and laws of the United States and of this State—1 State. 

The Constitutions of the States of Massachusetts, New Hampshire, Maryland 
and Georgia prescribe an oath of “ allegiance ” to the State—Maryland adds in the 
beginning of the oath, “ that I will support the Constitution of the United States— 
4 States. 

Oath in Constitution of Maryland, 1776. 

Article 55. 

“ I, A. B., do swear that I do not hold myself bound in allegiance to the King 
of Great Britain, and that I will be faithful and bear true allegiance to the State 
of Maryland.” 

Oath in the Constitution of Maryland, 1850. 

“That I will support the Constitution of the United States, and that I will be 
faithful and bear true allegiance to the State of Maryland and support the Consti¬ 
tution and laws thereof.” 



3 


There are then only four States which require an oath of allegiance, which I 
have stated to be synonymous with obedience; and in those States it is allegiance 
to the State, meaning the people of the State that have the ruling power. The 
phrase is used in the Constitution of Maryland in 1776—and no doubt the framers 
of that Constitution in separating from Great Britain and dissolving the tie of alle¬ 
giance they had acknowledged to George III, deemed it necessary that there 
should be a supreme authority to which allegiance should be due—and they sub¬ 
stituted the State of Maryland for George Ill in the oath of allegiance. And 
although the Convention of 1850, composed of able men, retained that phrase, 
they retained it in the form in which it was adopted in 1776, of allegiance to the 
Slnle of Maryland and not to the Constitution and laws of Maryland. 

With reference to this whole subject, to show that the term allegiance is inap¬ 
plicable to our system of government, I beg leave to read a synopsis of the doc¬ 
trine as contained in the argument of fhre'e eminent counsel, Ingersol!, Dallas and 
Du Ponceau, in 3 Dallas—Talbot vs. Jansen. 

“ With this law, however, human institutions have often been at variance; and 
no institutions more than the feudal system, which made the tyranny of arms the 
basis of society; chained men to the soil on which they were born; and converted 
the bulk of mankind into the villeins or slaves of a lord or superior. From the 
feudal system sprung the law of allegiance; which pursuing the nature of its ori¬ 
gin, rests on lands; for when lands were all held of the crown,.then the oath of 
allegiance became appropriate: It was the tenure of the tenant or vassal. [Black. 
Com. 366.] The oath of fealty and the ancient oath of allegiance was almost the 
same; both resting on lands; both designating the person to whom service should 
be rendered ; though the one makes an exception as to the superior lord, while the 
other is an obligation of fidelity against all men. [2 Black. Com. 53, Pal. 140.] 
Service, therefore, was also an inseparable concomitant of fealty, as well as of 
allegiance. The oath of fealty could not be violated without loss of lands; and as 
all lands were held mediately or immediately of the sovereign, a violation of the 
oath of allegiance was in fact a voluntary submission to a state of outlawry. 
Hence arose the doctrine of perpetual and universal allegiance. When, however, 
the light of reason was shed upon the human mind the intercourse of men be¬ 
came more general and more liberal; the military was gradually changed to com¬ 
mercial state; and the laws were found a belter protection for persons and property 
than arms. But even while the practical administration of government was thus 
reformed, some portion of the ancient theory was preserved; and among other 
things, the doctrine of perpetual allegiance remained with the-fictitious tenure of all 
lands from the Crown to support it. Yet, it is to be remembered, that whether 
in its real origin or in its artificial state, allegiance as well as fealty rests upon 
lands, and it is due to persons. Not so with respect to citizenship which has 
arisen from the dissolution of the feudal system; and is a substitute for allegiance, 
corresponding with the new order of things. Allegiance and citizenship differ 
indeed in almost every characteristic. Citizenship is the effect of compact: alle¬ 
giance is the offspring of power and necessity. Citizenship is a political tie; alle¬ 
giance is a territorial tenure. Citizenship is the charter of equality ; allegiance is 
a badge of inferiority. Citizenship is constitutional; allegiance is personal. Citi¬ 
zenship is freedom; allegiance is servitude. Citizenship is communicable; alle¬ 
giance is repulsive. Citizenship may be relinquished; allegiance is perpetual. 


With such essential differences, the doctrine of allegiance is inapplicable to a sys¬ 
tem of citizenship, which it can neither serve to control nor to elucidate.” 

One would suppose that if there was any place in which this doctrine of alle¬ 
giance could be found, if it was in accordance with the intent of the framers of 
the Constitution of the United States, it would be in the Constitution itself. 

Is there any requisition in any oath of office, that any officer shall bear alle¬ 
giance to the Government of the United States or to the people of the United 
States? for that would be more appropriate. If allegiance is due at all to any 
party except the individual State of which the party is a citizen, it is due to the 
whole people of the United States, upon the very doctrine and authority which the 
gentleman insisted upon, that the Constitution originates in the will of the people 
of the whole United States, as one homogeneous mass, and not of the people 
of the several States. If that doctrine be true, then allegiance or obedience being 
due to the paramount authority, it is due to the people of the United States. Look 
at the requisitions which are made in the Constitution of the United States. 
What is the oath which the President is required to make? It is to preserve, 
protect and defend the Constitution of the United States. What is the oath that 
is required of all civil and judicial officers of the several States, to secure fidelity 
from them to the supreme law of the land? It is that they will support the 
Constitution of the United States. That is what the framers of the Constitution 
deemed to be the extent of the obligation, as they made it the solemn form of the 
oath, to support the Constitution of the United States. There is therefore noth¬ 
ing in the Constitution of the United States to justify the idea contended for in this 
article. There is no claim in the Constitution to paramount allegiance. 

I most respectfully submit to any gentleman who has read the debates in the 
Convention that framed the Constitution of the United States, or who has read 
the debates in the several Conventions of the States that considered and adopted 
the Federal Constitution, if anywhere, from the first page to the last, he can find 
any countenance for this proposition that paramount allegiance is due to the Fed¬ 
eral Government. I go further, and call to your minds the jealousy that existed 
within the Slates with regard to delegating many of the powers that were pro¬ 
posed to be delegated to the Constitution of the United States. Look through the 
debates from the beginning to the end, and see what difficulty the framers of that 
Constitution would have had to encounter in getting it adopted, if such a propo¬ 
sition had been incorporated in it. Is there a man \yho believes that there is a 
solitary State which would have adopted it with such a provision in it? Not 
one, judging from the debates whiph were contemporaneous with the Constitution. 

It is possible in the nature of things, looking at the powers of the Government 
of the United States, and looking at the powers of the government of the several 
States, that any such idea can be entertained? Where is the mass of the powers 
of government delegated by the people to their agents? Is it in the Federal 
Government? The powers of the Federal Government are few and specific, and 
mainly external, relating to our intercourse with foreign nations. Look at the 
mass of powers delegated by the people to their State governments. 

The idea, as laid down in that authority, in Dallas, is that allegiance is due, 
and is connected with the idea of ownership and jurisdiction over land. If 
this right of eminent domain is to be the criterion of allegiance, where does it, 
exist? Has the Federal Government, from the time of its foundation down to the 
time of these unfortunate difficulties that are now upon us, ever claimed the right 


5 


of going into a solitary State of the confederacy, to appropriate one foot of land 
ior any purpose whatever by an act of Congress without the assent of that State 
previously had and obtained ? Was any such right delegated to the Federal 
Government? That is a test to show what was the idea of the framers of the 
Constitution. If this government is paramount, if the citizen owes paramount 
allegiance to it, then it has paramount jurisdiction over the soil on which he lives. 
Is any such idea contained in the Constitution of the United States? It was 
known that the Federal Government must have dock-yards, navy-yards, forts, 
lighthouses, to carry out its powers of regulating commerce. This was known, 
contemplated, and provided for. But was that Government vested with authority 
to go where it pleased, and appropriate land for a dock-yard, or to build a fort, or 
a lighthouse, or any other needful building, without the assent of the States? By 
no manner of means. The Constitution did not leave the subject in doubt; but 
among the enumerated powers of Congress is this: 

“ To exercise exclusive legislation, in all cases whatsoever, over such district 
(not exceeding ten miles square^) as may, by cession of pariicular Stales and the 
acceptance of Congress, become the seat of government of the United States, and 
to exercise like authority over all places purchased, by the consent of the Legisla¬ 
ture of the State in which the same shall be, for the erection of forts, magazines, 
arsenals, dock-yards, and other needful buildings.” 

The Constitution not only gives authority to purchase with the consent of the 
States, but they specially hedge it round that they shall not purchase within their 
limits and become the holderof enough land to build a lighthouse, or a dock-yard, 
or even a fort for ihe protection of the country, without the assent of the State 
Legislature first had and obtained. 

This doctrine is fully recpgnized in the case before the Supreme Court of the 
United States involving the grant of land in Alabama. 3 Howard, 212. The 
Supreme Court expressly say that Alabama, over ail her rivers, and bays and 
harbors, and on every foot of soil within her boundaries, had eminent domain 
which was supreme; and the Federal Government could not grant one foot of it, 
or enter upon it for any purpose, without the assent of the Stale Legislature first 
had and obtained; that although not one of the origineft thirteen, but formed out 
of the public lands, yet when admitted she was admitted with equal rights with 
the old thirteen States, who had the right of saying how far the Federal Govern¬ 
ment should enter upon their territory; and therefore within her territory not a 
foot of land could be occupied without her consent. 

They go further and say that not only has the Federal Government no such 
municipal jurisdiction, but has not the constitutional capacity to exercise it, ex¬ 
cept in the cases where it is expressly granted. It has not the right of eminent 
domain anywhere. Even the public lands are held in trust, for the purpose of 
forming new States out of them. It has no right to appropriate them except in 
the way the trust requires, for the purpose of settlement to form new States to be 
admitted upon an equality with the old States. 

The right of eminent domain, upon which depends the right to appropriate to 
public purposes all the property within the State, belongs to the Slate, and not to 
the United States. The Government of the United Stales has the right of taxa¬ 
tion, which the Constitution prescribes, and which is concurrent with the State 
governments. But it has no right of eminent domain, no right to appropriate pn- 


6 


vate property to the public use in any mode except by taxation. The State may 
do it, because the State power is paramount. The State may do it, because the 
State is sovereign, and has never stripped herself of the power which belongs to 
her as a sovereign State. 

You tell me that I owe paramount allegiance to a Government that in time of 
peace can afford me at my home no sort of protection, not even for the enjoyment 
of life, liberty and property; that has not an organization, a court, or an officer to 
whom I can appeaf for protection when my rights are invaded. Where have the 
citizens of Maryland from 1776 down to 1860—for I do not intend to allude to 
the unfortunate difficulties that have occurred since that period, any more than 
may be absolutely necessary, as I do not look upon the exciting topics which 
have been touched upon by other gentlemen as growing out of this subject, or as 
appropriate to this discussion—where have they looked for protection to life, 
liberty and property? If I were the owner of ships engaged in commerce upon 
the high seas, and my rights had been invaded by foreign nations, I should look 
to the Federal Government for protection; and why? Because that Government 
has been instituted by the authority of the sovereign State of Maryland, and has 
had powers delegated to it by Maryland and other Slates, for these external pur¬ 
poses, to demand redress of foreign nations, and protect me in the enjoyment of 
my rights as a citizen. I am taxed to support that Government; and it owes me 
protection because of the delegated powers which the State of which I am a citi¬ 
zen has given to it. 

Gentlemen talk about restrictions being placed upon the States. Who placed 
the restrictions upon the States? Will any gentleman tell me that any authority 
outside of the State has placed restrictions upon the State of Maryland? She 
put the restrictions upon herself, in adopting the Constitution of the United States, 
freely and voluntarily, by the vote of the people. She never acknowledged the 
right of any other power, since she separated from King George, to bind her in 
the least, beyond what the sovereign people of the State have agreed upon and 
plighted their faith to uphold. There is no tie, no bond, no sanction, that re¬ 
quires any obedience on the part of the citizens of the States to any other govern¬ 
ment, except what has been conceded and agreed to by the people of the States in 
their adoption of the Constitution of the United States. 

We have a State Government clothed with full authority to afford protection to 
life, liberty and property. We have an executive; Ave have a judiciary extended 
throughout the State; we have civil officers, sheriffs, and all that are necessary for 
a perfect government, with full powers delegated to it by the people. It was to 
that government and to those officers, that during the period to which I ha\ r e 
alluded, prior to 1860, the citizen looked for protection. If their lives had been 
assailed, the law of the State of Maryland was vindicated by the punishment of 
the offender. If property Avas invaded, they looked to the jurisdiction of the State 
of Maryland to put them in possession of it. If real property, or personal pro¬ 
perty, or personal reputation, were invaded, they looked to the State government 
to protect them. The Federal Government Avas poAverless to do it. In all those 
home privileges involving, life, liberty and property, they looked to the State gov¬ 
ernment. It was only in the case of a ship upon the ocean, and for protection 
abroad, that the Federal Government afforded the slightest protection to the citizen 
of Maryland since the formation of the Constitution. 

When a citizen thus lives under the protection of his own State, does he not 


7 


owe allegiance fo that State? Can it not command him, and all that is his, 
whenever the public exigencies require it? 

Mr. SANDS. It the gentleman will permit me, I will ask him this question. 
Does he agree to the statement that the slave property of the State of Maryland 
was worth fifty millions of dollars? To whom did you look for the protection of 
that species of property, to the State or Federal Government, in case it took wings 
and flew beyond the limits of the State? Who returned it, the State or the Fede¬ 
ral Government? 

Mr. JONES, of Somerset. For any invasion of the right to that or any other 
species of property within the State, we looked to the State government lor pro¬ 
tection and for redress. When that property escaped and went into the free 
States, we looked to the Federal Government, under the sanction of the Constitu¬ 
tion that Maryland herself had adopted, and looked to the good faith of the North 
plighted to her that it should be restored. 

Mr. SANDS. That is, you looked to the General Government. 

Mr. JONES, of Somerset. And whether the North has kept the faith she 
plighted, I submit to the gentleman. 

Mr. SANDS. As the question is submitted to me, I will say— 

Mr. JONES, of Somerset. There will be another occasion for comparing 
notes with the gentleman upon that subject, as I do not propose to touch upon it 
now. It is in a different article of the Constitution, and when that comes up we 
will talk about it. 

Mr. SANDS. Very well, sir. 

Mr. JONES, of Somerset, resumed : My colleague (Mr. Dennis) this morning 
gave the history and assigned the true reason why the States were not named in 
the Constitution. It was uncertain what States would adopt it. 

But I intended to give the reason for the incorporation into the Constitution of 
this provision, that “this Constitution and all laws which shall be made in pur¬ 
suance thereof, and all treaties made or which shall be made by the authority of 
the United States, shall be the supreme law of the land.” Before the adoption 
of the Constitution of the United States, the States had Constitutions and laws 
conflicting with the powers that were delegated to the United States Government. 
There was no power under the old confederation to punish treason against the 
United States. That power was in the State governments. The State govern¬ 
ments had laws punishing treason against the United States and against the old 
States. I think Pennsylvania had three sorts of treason in her laws; and no 
doubt other States were similarly circumstanced. When the Constitution of the 
United States was formed, and it was deemed expedient to define the crime of 
treason against the United States Government, and give the punishment of it to 
Congress, was it not perfectly manifest that in this case, as in all other cases where 
the laws of the State governments conflicted with the powers delegated to the 
Government of the United States, the laws of the State governments must neces¬ 
sarily give way? It was necessary that the different States should modify their 
own laws to make them conform to the Constitution of the United Stales. Onfe 
single clause covered the whole matter. They agrped that the Constitution, and 
the laws and treaties made in pursuance thereof, should be the supreme law of the 
land, because there could be no other way to attain this object. The power of the 
people to make these laws in the several States had never been doubted. These 


8 


Conventions which adopted the Constitution of the United States were above the 
State Governments, and had the right to say that all these laws that had previously 
existed as State laws on these subjects, and all the provisions relating to them in 
the State Constitutions, should be abrogated, so far as they might conflict with 
the powers delegated by the Constitution of the United States to another depart¬ 
ment of the Government. 

That was the reason that clause was adopted, to prevent any conflict. When 
it was so adopted, there was but one law. There are not two laws; not a para¬ 
mount law and a subordinate law. There can be but one law. The Constitution 
and the laws made in pursuance thereof are the law, and the only Jaw. There 
cannot be anything in the laws or constitutions of the States to conflict with this 
law; for if there were, by the very terms of the Constitutions, it would be a nul¬ 
lity, and must be pronounced null and void. 

I therefore submit to gentlemen upon the other side, that I have not heard, from 
the beginning of the debate to the present time, one solitary authority, one solitary 
saying of any statesman, of any commentator upon the Cosntitution, or of any 
individual who has been known as deserving of consideration for his legal 
opinions of constitutional law in this country, for the doctrine that is now at¬ 
tempted to be incorporated in the bill of rights. If there has been any such 
authority, if there has been any such suggestion from any source, I most respect¬ 
fully submit that I have not heard one syllable of it in this debate, and I should 
be glad to have it pointed out. I therefore submit, in the absence of any such 
authority, and in view of the opinions to which I have invited the attention of the 
Convention, the word “allegiance” is to be used as synonymous with “obe¬ 
dience,” and it is due to the people of the several States, as sovereign communi¬ 
ties, and that support, defence, protection and obedience is due to the laws and 
Constitution of the United States, and the treaties of the United States, accord¬ 
ing to the provisions of the clause which I have quoted; and there is no conflict, 
and can be no conflict, provided the several departments, the several servants of 
the people, obey the charter of their rights and powers, and do not come* unneces¬ 
sarily into collision. The books speak of temporary allegiance and permanent alle¬ 
giance, but not of paramount allegiance and subordinate allegiance. I do not under¬ 
stand that it is due, except to the highest sovereign power. There can be in one 
community but one sovereign power. There cannot be two. It does not at all detract 
•from the power, the dignity, the efficiency, or the usefulness of the Government of 
the United States, that it is a limited power, that it is an agent of the several sove¬ 
reign States, in all the magnitude and magnificence of its foreign and external 
powers delegated to it, and of its domestic powers which are also delegated to it. 
It exists, because brought into being by the people of the several States. The 
Constitution of the United States sustains and furnishes it with the powers it 
exercises, because the people of the States so will it. 

Therefore the Government of the United States is perfectly secure in the affec¬ 
tions and obedience of the people of the several States, so long as the Government 
of the United States keeps within the powers delegated to it, and so long as it 
affords the people the protection which that government, in its formation, was 
designed to afford. This idea of paramount authority and paramount allegiance 
has received no sanction from any statesman. On the contrary, it is expressly - 
negatived by statesmen of both schools, for it is well known that there were two 


9 


schools, two political opinions, of State and Federal powers, before the Constitu¬ 
tion was formed. Even in the first Congress that framed the articles of confedera¬ 
tion, during the whole period of the existence of that confederation, during the 
period of consultation in the Convention that framed the Constitution, during the 
period of the Conventions which adopted the Constitution, and from that time to 
the present, there have been two parties, one holding to the paramount necessity 
of strengthening the arm of the Federal Government, and the other insisting upon 
the necessity of maintaining the rights of the States unimpaired, and in full vigor, 
as essential to the preservation of liberty. These are the parties that have existed, 
and have come down to us, and we are divided upon precisely the same princi¬ 
ple. From their different standpoints, men in all parts of the country have looked 
at the question; one party looking at the jealousy of the States and thinking ir 
necessary to strengthen the arm of the Federal Government, and the other looking 
at the danger of consolidation and tyranny, and thinking it necessary to protect 
the States against the action of the Federal Government. It is the point upon 
which the parties have been divided, and upon which they are divided still. 

Looking at this question, I maintain that it is a very great error to suppose that 
there are two governments here. The people of Maryland have but one govern¬ 
ment. The State government is its domestic government, for its domestic affairs. 
The government at Washington is as much its government as the home govern¬ 
ment. It is its agent, not exclusively I admit, but it is just as much its govern¬ 
ment, as though its own powers as a sovereign were not distributed to the two 
departments. The fact that it is the agent also of many other sovereign States, 
does not at all impair its power, or its authority, or its identity as a part of our 
government. The powers it exercises over Maryland are by the consent of the 
people of Maryland. The powers it exercises over the people of any other State 
are by the consent of the people of that State. There is really but one govern¬ 
ment. They are different departments of the same government. When this idea 
takes possession of the mind, and is run out to its logical consequences, gentlemen 
will see how easy it is to confound the idea of paramount and subordinate 
allegiance, by losing sight of the great fact that there is really but one, and that is 
the government of the people of the State in which the parties live. I know Mr, 
Webster held the doctrine that there are two governments, instead of two depart¬ 
ments of the same government. Mr. Jefferson puts the matter in its true light 
in this extract: 

“ With respect to our State and Federal Governments, I do not think their 
relations are correctly understood by foreigners. They suppose the former subor¬ 
dinate to the latter. This is not the case. They are co-ordinate departments of 
one simple and integral whole. But, you may ask, if the two departments should 
claim each the same subject of power, where is the umpire to decide between 
them ? In cases of little urgency or importance, the prudence of both parties wilt 
keep them aloof from the questionable ground; but if it can neither be avoided 
nor compromised , a Convention of the States must be called to ascribe the doubtful 
power to that department which they may think best.” 

And even Mr. Webster in his great speech, in 1830, in reply to Mr. Hayne, 
said : 

« The people of the United States have declared that this Constitution shall be 
the supreme law. We must either admit the proposition or dispute their authority. 

1 * 


10 


The States are unquestionably sovereign, so far as their sovereignty is not affected 
by this supreme law. But the State Legislatures, as political bodies, however 
sovereign, are yet not sovereign over the people. So far as the people have given 
power to the General Government, so far the grant is unquestionably good, and 
the government holds of the people and not of the State governments. We are 
all agents of the same supreme power—the people. The General Government 
and the State governments derive their authority from the same source. A r either 
can, in relation to the other, be called primary, though one is definite and restricted, 
and the other general and residuary.” 

There is the authority of Mr. Webster, the leader of a school of those who are 
for giving to the Federal Government every power that by any fair and legitimate 
construction can possibly be claimed for it. Mr. Webster did not claim any right 
of paramount allegiance to the General Government from the people of the States. 
He admitted that “ neither can, in relation to the other, be called primary,” or 
paramount. The government at Washington is but the agent of the people of the 
several States; and it is perfectly immaterial whether you say it was ordained by 
the States, or by the people of the States. Mr. Madison has shown that when 
the word “States,” is used in reference to the formation of the Constitution of the 
United States, it means the people of the States. What else constitutes a State? 
I give the definition of a Greek, beautifully paraphrased by a British poet: 

“ What constitutes a State ? 

Not high raised battlement, nor labored mound, 

Thick wall, nor moated gate, 

Not cities fair, with spires and turrets crown’d; 

Not bays and broad-armed ports, 

Where, laughing at the storm, rich navies ride! 

Not starred and spangled courts, 

Where low-bowed baseness wafts perfume to pride! 

No ! men ! high-minded men ! 

Men who their duties know; 

But know their rights, and knowing dare maintain; 

Prevent the long-aimed blow, 

And crush the tyrant when they burst the chain— 

These constitute a State.” 

My learned friend from Anne Arundle (Mr. Miller) read a paragraph from Mr. 
Seward's despatch to Mr. Adams, dated April 10th, 1861, in which Mr. Seward 
professes to speak the sentiments of the President, and I have no doubt he did, 
and I trust the President maintains them yet; and therefore they ought to be 
agreeable to the majority of the Convention, for their party have nominated him 
for re-election, and 1 hold that they are committed to sustain the President and the 
Secretary of State and the views they here entertain. Here is the remedy that 
was contemplated by the President on April 10, 1861 ; 

“The so-called Confederate States, therefore, in the opinion of the President, 
are attempting what will prove a physical impossibility. Necessarily they build 
the structure of their new government upon the same principle by which they 
seek to destroy the Union, namely the right of each individual member of the 
Cofederacy to withdraw from it at pleasure and in peace. A government thus 
constituted, could neither attain the consolidation necessary for stability, nor 
guaranty any engagements it might make with creditors or other nations. The 
movement, therefore, in the opinion of the President, tends directly to anarchy in 
the seceded States, as similar movements in similar circumstances have already 


\ 


S 


11 


resulted in Spanish America, and especially in Mexico. He believes, neverthe¬ 
less, that the citizens of those States as well as the citizens of the other States, are 
too intelligent, considerate and wise to follow the leaders to that disastrous end. 
For these reasons he would not be disposed to reject a cardinal dogma of theirs, 
namely, that the Federal Government could not reduce the seceding Slates to obe¬ 
dience by conquest, even although he were disposed to question that proposition. But, 
in fact, the President willingly accepts it as true. Only an imperial or despotic 
government could subjugate thoroughly disaffected and insurrectionary members of 
the Slate. This federal republican system of ours is, of all forms of government, 
the very one which is most unfitted for such a labor. Happily, however, this is only 
an imaginary defect. The system has within itself adequate, peaceful, conserva¬ 
tive and recuperative forces. Firmness on the part of the government in main¬ 
taining and preserving the public institutions and property, and in executing the 
laws where authority can be exercised without waging war, combined with such 
measures of justice, moderation and forbearance as will disarm reasoning oppo¬ 
sition, will be sufficient to secure the public safety until returning reflection, 
concurring with the fearful experience of social evils, the inevitable fruits of 
faction, shall bring the recusant members cheerfully back into the family, which, 
after all, must prove their best and happiest, as it undeniably is their most natural 
home. The Constitution of the United States provides for that return by author¬ 
izing Congress on application to be made by a certain majority of the States, to 
assemble a National Convention, in which the organic law can, if it be needful, 
be revised, so as to remove all real obstacles to a reunion so suitable to the habits 
of the people and so eminently conducive to the common safety and welfare.” 

That was the position taken by the Administration, April 10, 1861. I believe 
there has been no additional power conferred upon the Federal Government since 
that time, either by a convention of the States, or by amendments submitted to 
the States or ratified by three-fourths of them through their State Legislatures. 
I might quote the authority of the same despatch, as the gentleman from Anne 
Arundle (Mr. Miller) did yesterday, to show that Mr. Seward spoke of allegiance 
due to the State and Federal Government, but claimed no paramount allegiance to 
the Federal Government. 

If any gentleman desires to see the distinct and separate character of the colo¬ 
nies distinctly set forth, 1 will refer him to Rawle on the Constitution, page 18, 
and to Story on the Constitution, page 163. 

“ Though the colonies had a common origin and owed a common allegiance, 
and the inhabitants of each were British subjects, they had no direct political 
connexion with each other. Each was independent of all the others; each, in a 
limited sense, was sovereign within its own territory. There was neither alliance 
nor confederacy between them. The assembly of one province could not make 
laws for another; nor confer privileges which were to be enjoyed or exercised in 
another, further than they could be in any independent foreign State.” 

I will not delay the Convention by any further remarks upon the separate cha¬ 
racter of the colonies. But I will state the fact that the history of these colonies 
will show that like their forefathers, they had a tenacity for their local customs and 
habits, and privileges and rights. This marked the very first contest in Maryland 
in which they were engaged after they settled in this country, when there were but 
a handful of them, and each man represented himself in the first General Assembly 


12 


held at St. Mary’s. The colonies at St. Mary’s passed laws which the lord proprie¬ 
tary refused to sanction, claiming that they ought to have originated with him, 
and the colonists rejected the laws sent over to them, maintaining that they had 
the right of originating them; and it was a year or two before that matter was- 
settled finally; and finally the lord proprietary had to yield precisely as George 
III subsequently had to yield upon a similar point. They insisted upon the right 
to self-government. And from that time, 1632, {lown to the present time, there 
has been nothing to strip the colonists of the right that they then asserted. It was 
not attempted after that controversy with Lord Baltimore. He conceded to them 
the power of making their own laws, and they were not interfered with again in- 
that way, until the time of the revolution. 

I have a word to say upon the subject of the confederation. As every one 
knows, the State of Maryland was the very last State that assented to the sever¬ 
ance of the connexion with Great Britain. The State of Maryland and the other 
colonies took up arms to maintain their rights under the Government of Great 
Britain. They thought that bv resistance the British Parliament and the British 
King would come to their senses. North Carolina took the lead in May, 1776, 
passed a Declaration of Independence and organized a government. Virginia,, 
in June declared its independence and organized a State Government. New 
Hampshire, as far bactt as 1775, had organized a State Government. 

It is well known that at first Maryland restricted her delegates from uniting with 
the delegates from the other Colonies in a Declaration of Independence, and it was 
only a few days before the 4th of July, 1776, that the Convention, then sitting at 
Annapolis, removed the restrictions, and authorized them to concur with the other 
United Colonies in declaring the United Colonies free and independent Slates , and 
in forming such further compact and confederation, kc., &c., as should be ad¬ 
judged necessary for securing the liberties of America, &c., provided the sole and 
exclusive right of regulating the internal government and police of this Colony 
be reserved to the people thereof.” 

And on the 6th July, 1776, in a formal “Declaration of the Delegates of Mary¬ 
land,” in Convention at Annapolis, after reciting the causes which impelled them 
to empower their delegates in Congress, as aforesaid, with the proviso aforesaid, 
they add : “ No ambitious views, no desire of independence induced the people of 
Maryland to form an union with the other Colonies. To procure an exemption 
from parliamentary taxation, and to continue to the legislatures of these Colonies 
the sole and exclusive right of regulating their internal polity, was our original 
and only motive. To maintain inviolate our liberties and to transmit them unim¬ 
paired to posterity, was our duty and first wish; our next, to continue dependent 
on Great Britain. For the truth of these assertions we appeal to that Almighty 
Being who is emphatically styled the searcher of hearts, and from whose omni¬ 
science nothing is concealed.” 

(The hour having expired, the hammer fell.) 

Mr. SMITH, of Carroll. I hope the same courtesy will be extended to the 
gentleman from Somerset that has been extended to other members, and I move 
that he be allowed fifteen minutes more. 

The motion was agreed to. 

Mr. JONES, of Somerset, proceeded : 

I shall not attempt to proceed with the argument. I will read, without com¬ 
ment, the following extracts: 


13 


“At the revolution, the sovereignty devolved on the people, but they are sove¬ 
reign without subjects (unless the African slaves among us may be so called,) and 
have none to govern but themselves; the citizens of America are equal as fellow 
citizens, and as joint tenants in the sovereignty.” 2 Dallas’ Rep. 419.— Chief 
Justice Jay, U. S. Court. 

“ Chief Justice Wilson’s works, 3 vol., pp. 292, 293 : 

“ The truth is, that in our government, the supreme, absolute, and uncontrol- 
able power remains in the people. As our Constitutions are superior to our legis¬ 
latures, so the people are superior to our Constitutions. Indeed the superiority in 
this last instance is much greater, for the people possess over our Constitutions 
control in act, as well as right.” * * * “ The consequence is, that the people may 
change the Constitution whenever and however they please. This is a right of 
which no positive institutions can deprive them .” 

“ These important truths are far from being merely speculative; we at this 
moment speak and deliberate under their immediate and benign influence. To 
the operation of these truths we are to ascribe the scene, hitherto unparalleled, 
which America now exhibits to the world, a gentle, a peaceful, a voluntary, and 
a deliberate transition from one Constitution of government to another, (from the 
Confederation to the Constitution of the United States.) In other parts of the 
world, the idea of revolution in government is, by a mournful and indissoluble 
association, connected with the idea of wars, and all the calamities attendant 
on wars.” 

“But happy experience teaches us to view such revolutions in a very different 
light—to consider them as progressive steps in improving the knowledge of go¬ 
vernment and increasing the happiness of society and mankind.” 

“ Oft have I viewed with silent pleasure and admiration, the force and prevalence 
through the United States of this principle—that the supreme power resides in the 
people, and that they never part with it. It may be called th e panacea in politics.. 
If the error be in the legislature, it may be corrected by the Constitution ; if in the 
Constitution, it may be corrected by the people. There is a remedy therefore for 
every distemper in government, if the people are not wanting to themselves.” 

Again in Chief Justice Wilson’s lectures, 1 vol., p. 21, he says : 

“A revolution principle certainly is, and certainly should be, taught as a prin¬ 
ciple of the Constitution of the United States, and of every Slate of the Union. 
This revolution principle—that' the sovereign power residing in the people, they 
may change their Constitution and government whenever they please—is not a 
principle of discord, rancor or war; it is a principle of meloriation, contentment, 
and peace” 

In the Pennsylvania Convention, Mr. Wilson said : 

“ But in the Constitution the citizens of the United States appear dispensing a 
part of their original power in what manner and what proportion they think fit. 
They never part with the whole, and they retain the right of recalling what they 
part with.” 

This must of course be understood as affirmed of the people of the several 
States, in their separate sovereign capacity. 

Col. Mason said : “ If the government is to be lasting it must be founded in the 
confidence and affections of the people; and must be so constructed as to obtain 
these. The majority will be governed by their interests. The Southern States 


r 


14 

are the minority in both Houses. Is it to be expected that they will deliver them¬ 
selves, bound hand and foot, to the Eastern States, and enable them to exclaim, 
in the words of Cromwell, on a certain occasion, ‘ the Lord hath delivered them 
into our hands V ”—3 Madison Papers, 1453. 

In 1795 the Supreme Court of the United States decided a case, reported in 3 
Dallas, p. 54, (Penhallow vs. Doane’s administrators,) involving the validity of 
an act of the New Hampshire legislature, passed 3d July, 1776, erecting a prize 
court for the trial of captures, &c., and also the powers of the Revolutionary 
Congress. After enumerating the powers exercised by that Congress, Justice 
Patterson said: 

et These high acts of sovereignty were submitted to, acquiesced in, and approved 
of, by the people of America.” He proceeds to argue that New Hampshire 
was bound by the acts and proceedings of Congress, and among other reasons, 
“ that she continued to be bound became she continued in the Confederacy. As 
long as she continued to be one of the Federal States, it must have been on equal 
terms. If she would not submit to the exercise of the act of sovereignty con¬ 
tended for by Congress, and the other States, she should have withdrawn herself 
from the Confederacy .” 

Justice Iredell, in his opinion of the above case, says : “Two principles appear 
to me to be clear. 1. That the authority was not possessed by Congress, unless 
given by all the States. 2. If once given, no State could, by any act of its own, 
disavow and recall the authority previously given, without withdrawing from the 
Confederation.” 

Judge Iredell, in this opinion, remarks upon the distinct, separate political cha¬ 
racter of each of the Colonies, and that they “ were not otherwise connected with 
each other than as being subject to the same common sovereign.” 

Justice Blair, in the same case, said : “ But it was said New Hampshire had a 
right to revoke any authority she may have consented to give to Congress and that 
by “ her acts of Assembly she did in fact revoke it, if it ever were given. To this 
a very satisfactory answer was given, if she had such a right, there was but one 
way of exercising it, that is, by withdrawing herself from the Confederacy ; while 
she continued a member, and had representatives in Congress, she was certainly 
bound by the acts of Congress.” 

I shall be able to state only the propositions, which I intended to argue and 
illustrate, if I had the time necessary for that purpose. I intended to show: 

That the people of the United States are, under the Constitution, a Confedera¬ 
tion of Sovereign States, as contra-distinguished from a consolidated people into 
one nation without regard to their separate State organization. 

That this is shown in the organization of each of the three departments of the 
Government of the United States. 

In the Legislative department, because it consists of two branches, in one of 
which ('the Senate) the States are all equally represented, and no law can pass 
without a concurrence of the Senate. 

In the Executive, because the President and Vice-President are elected by electors 
chosen by the people of each State, equal in number to the number of its repre¬ 
sentatives and senators. And if no election by electors, then by the House of 
Representatives as to President, where each State has one vote, and a majority of 
States must concdr in the election ; and in the Senate the Vice-President is elected 
by a majority of the Senate. 


15 


In the Judiciary, because the Judges are appointed on the nomination of the 
President, by and with the advice and consent of the Senate, thus giving a ma¬ 
jority of the States control of the appointments. 

So also in the mode of amendment. 

It requires two-thirds of both Houses to propose amendments, and they are not 
valid till ratified by three-fourths of the Stales, without regard to population. Each 
State has agreed, by the act of ratifying the Constitution, that as to alterations and 
amendments, she will yield with her co-States, such portion of her reserved 
powers as in the judgment of three-fourths of her co-States, the interest and safety 
of all the States may require. 

I intended to show further that. 

There is no reason why the people of a sovereign State should retain the right, 
universally admitted, of resuming the powers delegated to their State governments, 
and of readjusting and redistributing tb^m in a new Constitution, when the old 
has failed to answer their purposes, which does not apply with equal force for re¬ 
suming the powers delegated to the Federal Government in the Constitution of 
the United States whenever, in their deliberate judgment, that compact has been 
so far and so persistently broken by the co-States, that all hope of other redress has 
failed, and the liberty and safety of the people of such State, are manifestly endan¬ 
gered. The purposes the people of the States had in view in ordaining the Con¬ 
stitution of the United States were “ in order to form a more perfect Union, estab¬ 
lish justice, insure domestic tranquillity, provide for the common defence, promote the 
general welfare and insure the blessings of liberty to ourselves and our posterity.” 
The people in all the States were assured that the Constitution would certainly 
insure all these. Many good and true men doubted and opposed the ratification ; 
many others doubted and were reluctantly persuaded to try “the experiment,” (as 
General Washington called it;) whilst in only thje three States of New Jersey, 
Delaware and Georgia, was the ratification by the State Conventions unanimous. 
In the States of Pennsylvania, Connecticut, Maryland and South Carolina, it was 
ratified by large majorities; but in the other six States it was carried by small 
majorities, and in Massachusetts, New York and Virginia by only a few votes. 
In fact, the first Convention called in North Carolina in August, 1778, refused to 
ratify the Constitution, and Rhode Island refused even to call a Convention, in 
1778, to consider the question. The eleven States that adopted the Constitution, 
did, by that act, separately secede from the Articles of Confederation, leaving North 
Carolina and Rhode Island still united under those articles. The eleven States 
proceeded to organize the new government, elected their Congress and President, 
and the new government went into full operation in March and April, 1789. 
North Carolina and Rhode Island remained out of the new Union, and in the full 
enjoyment of every right as sovereign States, till North Carolina adopted the new 
Constitution in November, 1789, and Rhode Island in May, 1790. No one doubted 
that any State had the unquestioned right to remain permanently in the enjoy¬ 
ment of their separate sovereignty. 

Those who are compelled to admit all this, try to evade the force of the fact in 
construeing the Constitution of the United Stales, by insisting that the Confedera¬ 
tion was a compact between the several State governments, but the Constitution 
of the United States was*brdained by the people of the States themselves. Much 
stress is laid upon this statement. But what real difference does it make? The 


16 


State governments represented the people of the Stales in authorizing their commis¬ 
sioners to agree to the Articles of Confederation, as fully to all intents and pur¬ 
poses, as the State Conventions did in ratifying the Constitution of the United 
States. The one was the general agent whose authority was fully recognized and 
acquiesced in, and the other the special agent specially appointed for the one par¬ 
ticular porpose. # * # # 

In both cases'it was the act of the people of the several States in their separate 
sovereign capacity. The act done, in each case, was by each of thirteen sovereign 
States, in entering into a compact with the co-States; and the question is how can 
it vary the rules of construction of that compact, whether the act was done by 
general or special agents. 

The inquiry is, what powers were delegated in the one case to the confederation, 
in the other to the Federal Government. On examination of the two instruments, 
the powers will be found nearly identical. The principal difference will be found 
in their distribution and mode of exercise. Instead of all the powers being exer¬ 
cised by Congress or an Executive Committee, they were by the Constitution, 
vested in three departments of government, executive, legislative and judicial, 
with authority to lay taxes, and execute all the delegated powers directly upon 
the individual citizen. The reservation of powers not delegated in the second 
article of the confederation, and in the tenth amendment of the Constitution, is 
substantially the same. The implied obligation that no State could ever secede 
because the Constitution was a government and therefore intended to be perpetual, 
could not be more binding than the express agreement with the confederation that 
the articles should be inviolably observed by every State; that the Union should 
be perpetual; and that no alterations should be made in any of the articles, unless 
agreed to by Congress, and confirmed by the Legislature of every State. Yet 
within seven years from the time the last State formally agreed to the confedera¬ 
tion, twelve States, without Rhode Island, proceeded to form a new government, 
and eleven of them afterwards seceded from the confederation, against the consent 
of North Carolina and Rhode Island, and in utter violation of the compact. Their 
right so to do, when the compact, in the judgment of each, had failed to answer 
its purpose, was not denied or doubted. As Justice Marshall says, in McCulloh 
vs. Maryland, 4 Wheaton, 316, “ Surely the question whether they (the people) 
may resume and modify the powers granted to government does not remain to be 
settled in this country.” 

That was supposed to be settled by the Revolution, and to be inseparable from 
the idea of self-government by sovereign States. 

It is a principle of public law, in grants of franchises by government, that 
“ nothing passes by implication.” " The object and end of all government is to 
promote the happiness and prosperity of the community by which it is established ; 
and it can never be assumed that the government intended to diminish its power 
of accomplishing the end for which it was created.” 

8 Peters, 738. 11 Peters, 420. 

A fortiori, the right of the people of a sovereign Stale “ to resume and modify 
the powers granted to government,” when the compact is broken and the govern¬ 
ment utterly fails to secure the safety, happiness and prosperity of the community, 
cannot be taken away by implication. 


17 


The terms “granted,” “surrendered,” “alienated,” and the like, are well cal¬ 
culated to mislead the mind, when they are applied to powers of government. 

They are technical terms, belonging to the science of law. They generally 
jmply irrevocability, when used in connection with the proper subjects of “grant,” 
“surrender,” or “alienation,” in matters of private contract. Such terms, 
though frequently used in writing and speaking upon questions of constitutional 
construction of the powers of government, must be understood to mean “dele¬ 
gated,” which is the appropriate word when applied to powers conferred by a 
principal upon an agent. 

Hence, in the 1st section of 1st article of the Constitution of the United States, 
the phrase “powers herein granted,” means powers herein “ delegated,” as fully 
explained in the 10th article of amendments, viz : 

“The powers not delegated to the United States by the Constitution, nor pro¬ 
hibited by it to the States, are reserved tq the States respectively, or to the people.” 

Here Mr. Jones*s time expired, but on expressing a wish to read some extracts 
from Rawle on the Constitution, on motion of Mr. Daniel, further time was given. 

In conclusion, I desire to read some passages from a view of the Constitution 
of the United States, by Wm. Rawle, LL.D., ch. 32, “of the Permanence of the 
Union”—on guaranteeing a republican form of government to the States. 

This work was first published at Philadelphia, in 1825, and a new edition was 
published in 1829, in which the author says : “ In this edition the principles laid 
down in the first remain unaltered. The author has seen no reason for any change 
of them.” The author was one of the most eminent lawyers of the Philadelphia 
bar, and had received the degree of LL.D. when such marked distinction was 
bestowed only upon pre-eminence. He was for many years United States District 
Attorney, appointed, it is said, by General Washington. In politics he was always 
a high-toned Federalist. In a time of profound qpiet in the politics of the country, 
this eminent lawyer and jurist, belonging to the political school which had always 
inculcated the necessity of maintaining the powers of the Federal Government to 
the full extent that construction would allow, treats the right of State seces¬ 
sion's at that day a universally admitted right, as will be seen from.the following 
passages: 

Page 302. “ The secession of a State from the Union depends on the will of the 
people of such State. The people alone, as we have already seen, hold the power 
to alter their Constitution. The Constitution of the United States is to a certain 
extent, incorporated into the constitutions of the several States by the act of the 
people. The State Legislatures have only to perform certain organical operations 
in respect to it. To withdraw from the Union comes not within the general scope 
of their delegated authority. There must be an express provision to that effect 
inserted in the State constitutions. This is not at present the case with any of 
them, and it would perhaps be impolitic to confide it to them. A matter so mo¬ 
mentous ought not to be intrusted to those who would have it in their power to 
exercise it lightly and precipitately upon sudden dissatisfaction, or causeless jea¬ 
lousy ; perhaps against the interests and the wishes of a majority of their con¬ 
stituents. 

“ But in any manner by which a secession is to take place, nothing is more 
certain than that the act should be deliberate, clear and unequivocal. The perspi¬ 
cuity and solemnity of the original obligation require correspondent qualities in its 


18 


dissolution. The powers of the General Government cannot be defeated or im¬ 
paired by an ambiguous or implied secession on the part of the State, although a 
secession may perhaps be conditional. The people of the State may have some 
reasons to complain in respect to the acts of the General Government, they may 
in such cases invest some of their own officers with the power of negotiation, and 
may declare an absolute secession in case of their failure. Still, however, the 
secession must in such case be distinctly and peremptorily declared to take place 
on that event, and in such case—as in the case of an unconditional secession—the 
previous ligament with the Union would be legitimately and fairly destroyed. 
But in either case the people are the only moving power.” 

Page 303. “ It has been laid down that if all the States, or a majority of them, 

refuse to elect Senators, the legislative powers of the Union will be suspended.” 
(In a note—“it is with great deference that the author ventures to dissent from 
this part of the opinion of the learned Chief Justice of the Supreme Court in the 
case of Cohen vs. The State of Virginia, 6 Wheaton, 390.”) 

“01 the first of these supposed cases there can be no doubt. If one of the ne¬ 
cessary branches of legislation is wholly withdrawn, there can be no further legis- 
tion; but if a part, although the greater part of either branch, should be withdrawn, 
it would not affect the power of those who remained. (This is error. If the 
greater part of the Senate should be withdrawn, there could be no quorum.) In 
no part of the Constitution is a specific number of States required for a legislative 
act.* Under the Articles of Confederation, the concurrence of nine States was re¬ 
quisite for many purposes. If five States had withdrawn from that Union, it 
would have been dissolved. In the present Constitution there is no specification 
of numbers after the first formation. It was foreseen that there would be a natu¬ 
ral tendency to increase the number of States, with the increase of the population 
then anticipated and now so Iully verified. It was also known, though it was not 
avowed, that a State might withdraw itself. The number would therefore be 
variable.” 

“ In no part of the Constitution is there a reference to any proportion of the 
States, excepting the two subjects of amendments and of the choice of President 
and Vice President. •** 

“ In the first case, two-thirds or three-fourths of the several States is the lan¬ 
guage used, and it signifies those proportions of the several States that shall then 
form the Union. 

“ In the second, there is a remarkable distinction between the choice of Presi¬ 
dent and Vice President, in the case of an equality of votes for either. 

The House of Representatives, voting by States, is to select one of the three per¬ 
sons having the highest number, for President. A quorum for this purpose shall 
consist of a member or members from two thirds of the States, and a majority of 
all the States shall be necessary for the choice. 

“ The Senate, not voting by Slates, but by their members individually, as in all 
other cases, selects the Vice President from the two persons having the highest 
number on the list. A quorum for this purpose shall consist of two-thirds of the 
whole number of Senators, and a majority is sufficient for the choice.” * * * 

“ It seems to be the safest, and is possibly the soundest construction, to consider 


* But “a majority of each House shall constitute a quorum to do business.” 


19 


the quorum as intended to be composed of two-thirds of the then existing 
Senators.’’ 

Rawle, page 305. “As to the remaining States among themselves, there is no 
opening for a doubt. 

“ Secessions may reduce the number to the smallest integer admitting combina¬ 
tion. They would remain united under the same principles and regulations 
among themselves that now apply to the whole. Fora State cannot be compelled 
by other States to withdraw from the Union, and therefore if two or more deter¬ 
mine to remain united, although all the others desert them, nothing can be dis¬ 
covered in the Constitution to prevent it. 

“ The consequences of an absolute secession cannot be mistaken, and they 
would be serious and afflicting. 

“ The seceding State, whatever might*be its relative magnitude, would speedily 
and distinctly feel the loss of the aid and countenance of the Union. The Union, 
losing a proportion of the national revenue, would be entitled to demand from it a 
proportion of the national debt. It would be entitled to treat the inhabitants and 
the commerce of the separated State, as appertaining to a foreign country. In 
public treaties already made, whether commercial or political, it could claim 
no participation, while foreign powers would unwillingly calculate, and slowly 
transfer to it, any portion of the respect and confidence borne towards the United 
States. 

“ Evils more alarming may be readily perceived. The destruction of the com¬ 
mon bond would be unavoidably attended with more serious consequences than 
the mere disunion of the parts. 

“Separation would produce jealousies and discords, which in time would ripen 
into mutual hostilities, and while our country would be weakened by internal war, 
foreign enemies would be encouraged to invade, with the flattering prospect of 
subduing, in detail, those whom collectively they would dread to encounter.” 

Rawle, 306. “Such in ancient times was the fate of Greece, broken into nu¬ 
merous independent republics. Rome, which pursued a contrary policy, and 
absorbed all her territorial acquisitions in one great body, attained irresistible 
power. 

“ But it may be objected that Rome also has fallen. It is true; and such is the 
history of man. Natural life and political existence alike give way at the ap¬ 
pointed measure of time, and the birth, decay and extinction of empires only 
serve to prove the temerity and illusion of the deepest schemes of the statesman, 
and the most elaborate theories of the philosopher. Yet it is always our duty to 
inquire into and establish those plans and forms of civil association most con¬ 
ducive to present happiness and long duration; the rest we must leave to Divine 
Providence, which has hitherto so graciously smiled on the United States of 
America. 

“ We may contemplate a dissolution of the Union in another light, more disin¬ 
terested but not less dignified, and consider whether we are not only bound to 
ourselves but to the world in general, anxiously and faithfully to preserve it. 

“ The first example which has been exhibited of a perfect self-government, suc¬ 
cessful beyond the warmest hopes of its authors, ought never to be withdrawn 
while the means of preserving it remain. 

“ If in other countries, and particularly in Europe, a systematic subversion of 


the political rights of man shall gradually overpower all national freedom, and 
endanger all political happiness, the failure of our example should not be held up 
as a discouragement to the legitimate opposition of the sufferers; if, on the other 
hand, an emancipated people should seek a model on which to frame their own 
structure, our Constitution, as permanent in its duration as it is sound and splendid 
in its principles, should remain to be their guide. 

Rawle, page 307. “ In every aspect therefore, which this great subject pre¬ 
sents, we feel the deepest impression of a sacred obligation to preserve the Union 
of our country; we feel our glory, our safety and our happiness involved in it; 
we unite the interests of those who coldly calculate advantages with those who 
glow with what is little short of filial affection; and we must resist the attempt of 
its own citizens to destroy it, with the same feelings that we should avert the dog¬ 
ger of the parricide.” 

The chapter and work conclude with a quotation from the valedictory address 
of Washington, urging the preservation and the perpetuation of the Union. 

Upon this valedictory address of Washington, it may be remarked that his 
arguments for Union are addressed to the reason, the affections, and the interest of 
all the people. He says: “ With slight shades of difference, you have the same 
religion, manners, habits and political principles. You have in a common cause 
fought and triumphed together; the independence and liberty you possess, are the 
work of joint counsels and joint efforts, of common dangers, sufferings and suc¬ 
cesses. 

“ But these considerations, however powerfully they address themselves to 
your sensibility, are greatly outweighed by those which apply more immediately 
to your interest. Here every portion of our country finds the most commanding 
motives for carefully guarding and preserving the Union of the whole.” 

He nowhere suggests that when all these motives fail, an attempt was to be 
made to preserve the Union by force of arms! 


Printed by Murphy % Co., 182 Baltimore street, Baltimore. 





